Since the effective date, the Department of Public Works Bureau of Contract Administration, which enforces the ordinance, released its Rules and Regulations (Guideline) to guide employers with compliance. Employers have until July 1, 2017, to comply with the terms of the ordinance before penalties and fines are enforced.
Definition of Employee
Of particular interest, the guideline defines “employee” to mean any individual who performs at least two (2) hours of work on average each week within the geographic boundaries of the City for an Employer. Average week is determined by the last four complete (4) weeks before the position is advertised. This Employee is covered by the FCIHO regardless of whether the Employee is full-time, part-time, seasonal, or temporary.
Before the employer withdraws an offer of employment based on criminal history, the employer must:
- Conduct an Individualized Assessment as described below.
The employer must make a written determination identifying the link between specific aspects of the applicant’s criminal history and the risks inherent in the job duties and responsibilities of the employment position. At the minimum, the employer must consider the so-called Green factors identified in the EEOC Enforcement Guidance such as:
- What is the nature and gravity of the offense?
- How much time has passed since the offense?
- What is the nature of the job duties and responsibilities?
- Are you looking at only convictions?
- Give the applicant a written notice of the opportunity to present additional information through the Fair Chance Process; and
- Hold the employment position open for at least five business days after the applicant receives the notification to provide the employer with additional information or documentation.
If the applicant fails to submit any documentation within the five business days, then the employer can take the proposed adverse action without additional requirements under the ordinance. If the applicant submits any documentation, then the employer must perform a reassessment of the proposed adverse action using the same process as the original assessment but taking into consideration the information and documentation that the applicant submitted, as described in the “Fair Chance Process” described below. If the decision is adverse, the employer must notify the applicant and provide a copy of the re-assessment.
Fair Chance Process
During the Fair Chance Process, the applicant may provide—and the employer must consider—any information relevant to the employer’s decision. Examples may include the following:
- The fact or circumstances surrounding the offense or conduct;
- The number of offenses for which the individual was convicted;
- Older age at the time of conviction, or release from prison;
- Evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- The length and consistency of employment history before and after the offense or conduct;
- Rehabilitation efforts with examples of rehabilitation being: certificates or proof of education/training, letter of recommendation from community leaders, and certificates of rehabilitation granted by a court;
- Employment or character references and any other information regarding fitness for the particular position; and
- Whether the individual is bonded under a federal, state, or local bonding program.
The Los Angeles Bureau of Contract Administration (BCA) provided a Fair Chance Initiative for Hiring Ordinance Individualized Assessment and Reassessment Form that can be used before taking an adverse action against an applicant.
If the employer determines that the applicant poses an unreasonable risk, the employer must provide the applicant, before withdrawing their offer of employment: (1) a copy of the written Individualized Assessment performed, (2) documentation or information supporting the employer’s adverse action, and (3) documentation of the date the applicant was notified. BCA published a sample Notice to Rescind Offer of Employment letter for employers.
Suggestions for employers in multiple jurisdictions
The guideline also provides the following suggestions for employers from multiple jurisdictions that do not have a “fair chance” law in effect:
- Remove any questions inquiring about an applicant’s criminal history;
- Create a specific application for those positions that would be covered by the city of Los Angeles Fair Chance Initiative for Hiring Ordinance; or
- Include a disclaimer that applicants should not respond to those questions about their criminal history on the application.
Notice and Posting Requirements, Application, and Interview Procedures
In addition to posting notices of applicant’s rights under the FCIHO (described in the December compliance update), employers must send a copy of the notice regarding the provisions of FCIHO to each labor union, representative, or worker with which that a collective bargaining agreement that covers employees located within the city. Also, the guideline prohibits the following statement as it is a violation of the ordinance: “Criminal background checks must be passed to be considered for a position.”
- This applies to private employers in the City of Los Angeles who employ 10 or more people.
- Los Angeles employers may not request criminal background information before a conditional offer of employment.
- Employers must follow specified notice requirements (allowing the applicant five business days to provide documentation), and provide the applicant a fair chance process, before taking an adverse action against the applicant.
Go here to view the Rules and Regulations (Guideline) to guide employers with compliance:http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Ordinance%20Rules%20and%20Regulations%20Final.pdf
Go here to view the Fair Chance Initiative for Hiring Ordinance Individualized Assessment and Reassessment Form: http://bca.lacity.org/site/pdf/eeo/
Go here to view the sample Notice to Rescind Offer of Employment letter for employers: http://bca.lacity.org/site/pdf/eeo/